Responsibility for Historical Injustices: Reconceiving the Case for Reparations

The twentieth century ended with the vindication of many of its most mistreated victims\u27 cries for reparation.2 Holocaust survivors retrieved over $8 billion in assets frozen in bank accounts or looted by the Nazis;3 Japanese Americans interned during World War II received compensation from the U.S. government;4 Chile compensated descendants of Pinochet\u27s victims;5 Japan redressed Korean comfort women ; 6 and Canada paid damages to Aboriginals for forced assimilation of their children.7 Absent from the list was the longest suffering and most visible of groups seeking repair - African Americans.

The Unemotional Corporation

Because corporations are not capable of experiencing emotions, we should stop thinking of them as persons. Corporations are monsters – not in the sense that they are hell-bent on evil but in the sense that they lack certain capacities that are the hallmarks of our humanity. In particular, and like most supernatural creatures populating both mythology and the movieplex, corporations lack the ability to appreciate what it might feel like to be the victim of a wrong and, not unrelatedly, the ability to feel bad when they do wrong. To put it in our folk terminology, the corporation lacks a heart

Burdening Substantial Burdens

In Hobby Lobby v. Burwell, the Supreme Court held that religious believers could establish that their free exercise was substantially burdened just so long as they—or the corporation they had formed—believed that it was. This highly deferential stance paved the way for yet another challenge to the contraceptive mandate. In Zubik, religious organizations (ROs) contend that it is not just subsidization of contraception that can make an employer complicit in contraception use. Instead, even filling out a form registering one’s objection to the mandate can do so. The government has responded by vigorously arguing that filling out a form cannot reasonably be construed as a substantial burden. One can read the Court’s per curiam opinion as an implicit endorsement of the RO’s claim that the accommodation process substantially burdens their free exercise. Nonetheless, without a decision on the merits, it is not clear just why the ROs should prevail on the substantial burden question. Nor do the parties’ submissions provide the needed clarity as the arguments on each side are irredeemably flawed. Or so at any rate I argue here. I nonetheless believe that there is good reason for ROs to contest the accommodation process, as it requires that the ROs ratify contraceptive use, in contravention of their religious beliefs. On these grounds, I find that the existing process imposes a substantial burden on religious exercise. But I also take seriously the rationale behind the contraceptive mandate and I conclude by seeking to vindicate women’s rights to free contraception in ways that the ROs should find congenial

Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby\u27s Wake

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of com-plicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee’s health-care package the “boss’s business” (to borrow from the nickname of the Democrats’ pro-posed bill to overturn Hobby Lobby). Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfu-sions or vaccinations) or to serve customers whose lifestyles they deplore (for exam-ple, gays and lesbians)—do not turn on the organizational form that the employe

Conscience and Complicity: Assessing Pleas of Religious Exemptions in \u3cem\u3eHobby Lobby\u3c/em\u3e\u27s Wake

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act\u27s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic that belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee\u27s health-care package the boss\u27s business (to borrow from the nickname of the Democrats\u27 proposed bill to overturn Hobby Lobby)

\u3cem\u3eCitizens United\u3c/em\u3e and the Ineluctable Question of Corporate Citizenship

As a result of the Supreme Court\u27s decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on advertisements supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the threat to democracy posed by allowing wealthy corporations to function as political speakers arises under the same regime that allows wealthy individuals to do so. If we are not prepared to limit individuals\u27 expenditures on political speech, we will have to find a way to distinguish individuals\u27 and corporations \u27free speech rights

Tender and Taint: Money and Complicity in Entanglement Jurisprudence

Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception to the law’s general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the law’s liberalism falls away. Money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby, the Supreme Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars. Pecuniary association explains material support cases where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group’s violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues, even though they were not going to fund the union’s political activity, can be understood on similar grounds. The first aim of this piece is to trace the law’s divergent approaches to shared responsibility. On the one hand, the law’s atomism generally constrains complicity. But the doctrine tells a very different story where money is the means of association. I aim to draw out this divergence across numerous doctrinal areas, including compelled hosting, campaign finance, public accommodations, and school choice. Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law’s special solicitude for money. Two findings emerge. First, Christian concerns with purity—along with the inevitable intermingling with the profane that market interactions involve—prompt a heightened focus on pecuniary association. But, second, the understanding of the evil of pecuniary complicity in Christian thought is far more defensible than the one embodied in secular law

Defense of Others and Defensless Others

When the Unborn Victims of Violence Act (UVVA) was signed into law on April 1, 2004,1 the federal government dishonored nothing less pedigreed than its founding philosophy. The UVVA criminalizes harm to the fetus and sanctions such harm with the punishment that would have befallen the accused had the women carrying the fetus been the one to sustain the injuries instead.2 This Article argues that recent efforts at fetal protection, like the UVVA, defy and defile liberalism, the political theory underpinning this nation\u27s constitution,3 and thereby conduce to the subordination of women.

Free Speech and Off-Label Rights

When a litigant invokes a constitutional right toprotect interests different from the ones underpinningthe right, he engages in what this Article calls anoff-label rights exercise. The Free Speech Clause hasrecently become an especially prominent, and troubling,site of off-label rights exercises. Two of the mostprominent cases in the Supreme Court’s last terminvolved litigants who invoked their constitutionalrights to free speech to protect interests unrelated tospeech or expression. In Janus v. American Federationof State, County, & Municipal Employees, a stateemployee argued that forcing him to pay for the union’sbargaining activities violated his rights againstcompelled speech. But the union would be speaking forhim—representing him along with all of his fellowemployees in labor negotiations—whether or not he wasmade to pay union dues. His free speech claim was thena smoke screen used to protect a purely pecuniaryinterest—or an off-label rights exercise, and anopportunistic one at that.Second, in Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission, a baker who opposed same-sexmarriage on religious grounds argued that requiringhim to provide custom wedding cakes to same-sexcouples violated his free speech rights. But, as in Janus, speech was incidental to the baker’s true interest. Hadthe Court granted the baker’s free speech claim—findingthat he could deny a gay couple a wedding cake withunique artistic designs but still requiring him to providean unadorned cake—the baker would likely have beenno better off. For speech or artistry does not implicate awedding vendor in a same-sex marriage any more thana non-expressive contribution does. Here, too, then thefree speech claim was off-label—an effort to leverage thelaw’s greater solicitude for speech relative to religiousfreedom even while the baker does not have theexpressive interests grounding constitutional rights tofree speech.This Article uses cases like the baker’s, which theCourt will almost surely revisit, to advance a theory ofthe proper scope of constitutional rights, distinguishingbetween on- and off-label rights invocations. To that end,the Article’s first aim is to establish that artistic weddingvendors’ invocations of the Free Speech Clause are infact off-label.The Article’s second and larger aim is to critiqueoff-label constitutional rights exercises. This Articleargues that every off-label rights exercise demeans theasserted right and risks creating intolerable inequalityrelative to the person who shares the litigant’s trueinterest but who cannot make her claim fit within thecontours of the misappropriated right. For that reason,the Article concludes that courts have good reason todeny off-label rights claims—especially in cases like thewedding vendor challenges